The Art of Great Lawyers

Charles Mwaura Kamau The Art of Great Lawyers Draft

The Art of Great

Lawyers By

Charles Mwaura Kamau

LLB (Hons), LLM (Law & Corporate Governance)


~ Chinese Proverb


Copyright

All Rights reserved


More Books by the author:

1. Foundations of Kenya's Company Law with Cases and Materials.

http://www.amazon.com/dp/B00G1HHQ6W

2. Basic Principles of Criminal Litigation in Kenya (The Quick Law Series)

http://www.amazon.com/dp/B00G1IB6PI

3. Wisdom of Ages: A survival guide to wealth, peace & happiness

http://www.amazon.com/dp/B00GJ8HFCS

http://www.amazon.com/dp/B00GR9GXOA

5. The Unbroken Spirit- A Story of the Enduring African Spirit, Libra Publishers 2013

(Celebrating Kenyan Golden Jubilee)

6. Principles of Kenyan Constitutional Law, (forthcoming, LawAfrica Publishers)

NOTE

The Quick Law Seriescovering a wide range of law modules.
http://www.amazon.com/dp/B00G1HHQ6Whttp://www.amazon.com/dp/B00G1IB6PIhttp://www.amazon.com/dp/B00GJ8HFCShttp://www.amazon.com/dp/B00GR9GXOA


Dedication

This book is dedicated to all those who have made or are aspiring to make the pursuit of

Justice, Equality, Fairness and Freedom their vision and mission in life.


Draft Copy


INTRODUCTION

Then come up with some arguments. Then write them down in a brief. And argue

Dear Reader

The fundamental lawyering skills are: problem solving, legal analysis, legal research, factual

investigation, communication, counselling, negotiation, litigation and alternative dispute-

resolution procedures, organization and management of legal work, and recognizing and

resolving ethical dilemmas. These are the skills and competencies that make great lawyers.

Learn this well and you are ready to become a capable lawyer. A law degree or reading of

law books has very little to do with lawyering. As a matter of fact most law books are meant

to be consulted not read. Comprehend the blueprint and the entire edifice becomes a

The book summarises in clear and simple language, the principles of great

lawyering.

This book is meant to give you a roadmap to developing these skills of top lawyers. The book

is designed to help law students; law students can use this book independently to learn legal

skills. It is written in such a way that students can progressively build their reasoning,

researching and analytical skills. It is further intended as a text for legal methods and legal

writing courses. The section on how to tackle problem and essay problems is section

specifically written for the students.

For the student, I have this to say: The first step in mastering law is to become a dynamic

learner. And this book will help you to develop as a dynamic learner. A dynamic learner does

not settle for the first answer, but always considers alternatives. A dynamic learner

recognises when a skill is needed and has the willingness to apply it. It is hoped that with

this book on your side, as you pursue your dream of becoming a great lawyer, you will avoid


becoming a lawyer in the sense that you have a law degree. You will be a lawyer in the

sense that you will be ready to be a provider of services.

The book is also written with new advocates, law lecturers and the general public in mind.

For the new advocate who want to improve their legal reasoning, advocacy skills and

analytical skills, the book is indispensable, most of its ideas might seem obvious, but that

may be the very reason you need the book, because the ideas are obvious, your professors

might have taken them for grated and thus neglected to impress upon you minds that, this

skills are what make great lawyers. As for the law professors, I hope you will use the book as

a supplement to your core texts on the introductory modules of law. The book also contains

a comprehensive bibliography that can be used as a catapult to further research.

As for the general public, if you have ever been fascinated with the mysterious workings of

the monolith that controls most of our lives from the womb to the tomb (in other words the

law); this book will clear a few things on how the law and lawyers work. If you have ever

been spellbound by the sleights of hands performed by the great lawyers on our television

screens, then this book will let you in on some of those tricks. Above all, if you are ever in a

legal fix and you do not have the money to pay the services of a great lawyer,

reading this book and concertedly applying its principles in your case will go a long way in

tilting the scales of justice on your side.

There is a chapter on Logic, logic being the lifeblood of law. In case after case, prosecutors,

defence counsel, civil attorneys and judges call upon the rules of logic to structure their

arguments. Thinking like a lawyer means employing logic to construct arguments. This

chapter offers a primer on the fundamentals of logical thinking. It endeavours to explain, in

broad strokes, the core principles of logic. The reasoning being that; a person familiar with

the basics of logical thinking is more likely to argue effectively than one who is not.

The chapter on legal research: Legal research instructors seldom have adequate class time

to teach students the print and online sources needed to complete a research task

successfully.

research. Everyone in the legal professionlaw students doing research for a paper or as a

faculty research assistant, summer associates and new attorneys doing research for more


senior attorneys, and law professors and seasoned attorneys researching for themselves

can benefit from the ideas covered in this chapter.

The chapter on legal writing: The chapter has two main purposes. The first is to explain how

lawyers construct legal arguments. In this regard, the chapter is meant to be a purely

practical guide to the seemingly mysterious process by which lawyers take the raw materials

of litigation cases, statutes, testimony, documents, common sense and mould them

take a well-constructed legal argument and present it, in writing, in a way that legal decision

makers will find persuasive. The chapter, in other words, is concerned with how to (1) build,

and (2) present winning legal arguments.

Like any legal writing, good drafting requires knowing the law and the substance first,

followed by clear organization and by writing appropriate to the audience. It also requires

an artist's touch, to ensure that the design of the contract document will aid in its usability

and clarity. Finally, good drafting requires critical evaluation, reading the document through

the eyes of bad faith or hostile readers, and periodic review to assure that the document

needs.

The chapter on advocacy offers guidance on making opening and closing speeches; planning

and delivering examination-in-chief and cross-examination; questioning witnesses. Oral

advocacy chapter: oral advocacy remains a critical skill for law students to learn and

cultivate, no matter which facet of law practice they enter upon graduation. This chapter is

targeted at oral argument novices. It discusses how a beginner to appellate oral argument

may effectively prepare and deliver an argument. It offers a comprehensive set of

instructions that will help you become an adept advocate. Only those advocates who are

well-prepared are capable of delivering an effective oral argument that functions as an

educational dialogue between attorney and bench.

The chapter on alternative dispute Resolution is written with the following entreaty of

United States Supreme Court Chief Justice Warren Burger in mind:

The entire legal profession lawyers, judges, law teachers has become so mesmerized with the

stimulation of the courtroom contest that we tend to forget that we ought to be healers healers of


conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence

because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers,

not procurers? Healers, not hired guns?

No claim to originality is made. Most ideas contained in this book have been expressed

elsewhere (for example, consult bibliography) and have been practised by great lawyers

since

collate some of these timeless and exclusive ideas under one roof.

As you engage with the ideas postulated in this book in the road to becoming a healer,

remember that it takes time to develop expertise in legal problem-solving, legal drafting,

legal advocacy and legal research. The skills can be developed only by actually working

through the process of practice

against the hard world of consequences, of repeated success and failure, and some

inductive efforts at understanding what works and what does not, what seems important

and what does not.

Good luck.

Charles Mwaura Kamau

(Advocate High Court of Kenya and Lecturer in Law, based in London UK)


Table of Contents The Art of Great Lawyers ........................................................................................................... 1

INTRODUCTION ...................................................................................................................... 7

LEGAL DRAFTING .................................................................................................................. 15

Initial Stages ..................................................................................................................... 15

Writing the brief............................................................................................................... 18

Contents of A brief ........................................................................................................... 19

Reply briefs ...................................................................................................................... 23

Addendum........................................................................................................................ 24

LEGAL OPINIONS .................................................................................................................. 26

The formula of a legal opinion ......................................................................................... 26

Majority, Concurring & Dissenting Opinions ................................................................... 29

The case method .............................................................................................................. 33

Published Opinions .......................................................................................................... 34

Opinion Writing Guidelines .............................................................................................. 35

IRAC & CRARC .................................................................................................................. 37

DRAFTING GOOD CONTRACTS ............................................................................................. 45

Determine the substance of the contract. ...................................................................... 45

Analyse the audience ....................................................................................................... 48

Draft the contract ............................................................................................................ 54

Design the Document ...................................................................................................... 57

Evaluate the document .................................................................................................... 57

LOGIC FOR LAWYERS ............................................................................................................ 60

Deductive Reasoning ....................................................................................................... 60

Inductive Reasoning: Generalisations .............................................................................. 64

Analogy ............................................................................................................................ 66


ADVOCACY ........................................................................................................................... 69

Preparation ...................................................................................................................... 69

Identifying a Theme ......................................................................................................... 72

Preparing Your Argument ................................................................................................ 77

Using technology in courtroom ....................................................................................... 88

Golden Rules for the Examination of Witnesses ............................................................. 89

Presenting Evidence ......................................................................................................... 96

LEGAL RESEARCH ................................................................................................................. 98

Understanding research assignment ............................................................................... 98

Core principles of legal research .................................................................................... 101

Library catalogues .......................................................................................................... 102

Practical tips ................................................................................................................... 104

Free online legal databases: .......................................................................................... 106

ALTERNATIVE DISPUTE RESOLUTION ................................................................................. 109

Arbitration ...................................................................................................................... 109

International Law Governing Arbitral Agreements ....................................................... 114

Constructing the Arbitration Clause .............................................................................. 114

Mediation ....................................................................................................................... 117

Negotiation .................................................................................................................... 120

Conflict Resolution ......................................................................................................... 121

Priming-legal negotiation ............................................................................................... 123

The art of negotiation .................................................................................................... 124

PROFESSIONALISM AND INTEGRITY .................................................................................. 129

EXAMINATIONS .................................................................................................................. 136

Essays ............................................................................................................................. 136

Referencing and avoiding plagiarism ............................................................................. 141


Problem questions ......................................................................................................... 144

Back to basics: Grammar ............................................................................................... 147

Keys to clear legal writing .............................................................................................. 163

BIBLIOGRAPHY ................................................................................................................... 167


LEGAL DRAFTING

The Complete Plain Words by Sir Ernest Gowers

The goal of this chapter is to share some practical tips for improving your brief writing.

Many of these tips will seem obvious. Yet it is surprising how often lawyers overlook them.

Please note there is no one right way to write a brief, however, there are some general

themes of line, form, and colour that characterize a well-executed brief, even though much

must be left to the style and imagination of the craftsman.

As drafters, lawyers not only litigate, but they also seek to avoid litigation. In litigation

practice, they draft pleadings, Motions, interrogatories, jury instructions, settlement

agreements, and orders, among other documents. In practice that seeks to avoid litigation,

they draft contracts, public and private legislation, wills, trusts, and other documents. Here

we shall concentrate on briefs, opinions and contracts.

In the course of reading this chapter, you should always keep it in mind that, Legal argument

and legal writing are inseparable. You should also remember that, the underlying purpose of

all legal writing is communication and persuasion.

Initial Stages

Preparing to write a brief:

A brief is a legal document prepared by a party to the Court. It contains information on the

facts of the case, the legal issues to be decided, the law the Court ought to apply, and the

decision the party desires the Court to reach.

The goal of a brief is to convince the Court that one's position is correct, logical and

reasonable. To be compelling, a brief must also be understandable and concise. The Court

will read many briefs throughout the session, so it is important to write in a clear and

interesting manner.

Read and digest your instructions


Be careful of forming strong views at the initial stage, or you may prejudice the depth and

width of your analysis at the later stages. In reading instructions the point is to avoid

labelling the case, At the initial

reading your goal is to absorb as much of the factual background as possible.

At this stage your mind should be asking questions about what has happened. Concentrate

The instructions will never ask you to write all you know that is vaguely legally relevant, but

will set you specific tasks, which are normally set out at the start or the end of the

instructions.

Having understood the instructions, you need to clarify your objectives. Write the

instructions down and send it to the client, ask that he confirms you understood his

instructions. Now it is time to construct your opinion on the matter.

Analyse the facts

Before you form views on the appropriate legal solution you will need to carry out a

thorough fact management exercise. The legal argument must be based on the facts, not

twisted to fit your preconceived legal theory.

Having analysed the basic facts, three further stages of factual analysis are important in

preparing to write an opinion, because they are all closely related to exercising your

judgement on the chances of the case succeeding.

(a) Identify any gaps in the facts.

Almost certainly your instructions will not give you all the facts, as it would be very

expensive and time consuming for instructing clients or your boss to collect everything

before sending a case to you. Your opinion will have to be based on the facts that are

available. Gaps in the facts are important first because they may prove a weakness in


developing a legal case, and secondly because in your opinion you will need to indicate to

instructing solicitors what extra information should be sought.

(b) Identify which facts are probably agreed, and which are probably in dispute.

The point is that a case can be most firmly founded on facts that are agreed. Where facts

are in dispute, your case is open to challenge and is less strong. Again this will be directly

relevant to exercising your judgement on the case.

(c) Identify which facts you have evidence of

This is especially important in relation to facts in issueif you have a fact in issue on which

you have little or no evidence your case is very weak. Again this will be important when you

come to exercise your judgement. Also, your opinion should indicate to instructing clients

where evidence is required.

(d) Identify which facts you need evidence for

Where there are facts which are disputable and you have no evidence, one way or the

other, you need to carry some detective work and gather the evidence.

Construct a legal framework

Once the facts are fully analysed it is safe to start analysing the legal issues. This is where

the professional ability of the barrister begins to come into play, deciding what legal

possibilities there are, and which is strongest. The first step is to identify the possible causes

of action.

If they are many causes of action it is important to consider them separately.

Carry out any necessary research

From the analysis you have done so far you have identified several matters that require

research. Now is the time to carry out that research, a more focused way: remember, you

are looking for answers to questions that you have identified, not researching the law for its

own sake.


Look at the case as a whole

You are now in a position to pull everything together and allow the case to take shape.

You will start to create a skeleton plan for your opinion. You will inevitably start forming a

view on the case as a whole, and on each issue. You probably have a fairly clear idea by now

what your opinion is going to be, both overall and on the major issues. You therefore know

what matters are most important and which matters will be subsidiary.

You must consider liability first, then damage.

Answer all the questions

You have now put the whole case together and it has shape. In all probability you know by

checking that you do have an answer to every issue you have raised and intend to discuss.

Of course, it may be a conclusion of uncertainty, where you use your judgment to express

an opinion, in which case you need to think how you will express that opinion to give a clear

indication of how strong you think the case is on that point.

Consider your advice

Obviously your advice is to a considerable extent wrapped up in the answers you have given

to the questions.

But do not forget evidence, further information required, procedural matters, and steps to

take. Advice on these matters should also be incorporated into your opinion. It might be

worth compiling a list of all the points of advice you intend to give under this heading, to

ensure that nothing important gets left out.

Writing the brief

Draw up a skeleton plan


Before writing your opinion, you should draw up a skeleton plan. It is a false economy to

start by going straight into writing an opinion without drawing up a skeleton, as you will

often find that you miss something out or get confused and have to start again. You should

never have to waste time writing an opinion out twice. The properly planned opinion will be

right on first attempt. However, this does not preclude the necessity of editing.

The broad structure of your opinion, and therefore your skeleton, should by now be clear to

you. However, the value of a skeleton plan is that it tells you not just what you are going to

write about, but what you are actually going to say. In other words, it contains your

conclusions and opinions within the structure of issues.

The skeleton should present your case in logical, persuasive fashion. Break your analysis into

parts. Readability is enhanced by headings and subheadings that tell a logical story. Use your

plan to make topic headings for each major point in your brief.

Remember: There is no correct way to create a skeleton plan. Use whichever method suits you.

Contents of A brief

Briefs must contain the following elements:

1. Title Page: The title of the case shows who is opposing whom. The name of the person

who initiated legal action in that particular court will always appear first.

2. Table of Contents: Because the Argument is the most complex part of the brief, the

headings and subheadings used within the argument section should also be listed in the

contents with the corresponding page number.

3. Table of Authorities: This list not only verifies the sources used by the attorney, but is

useful for the Court and for other attorneys to quickly determine what cases, statutes or

other materials are being cited, and to easily locate these references in the original research

materials used in preparing the case.


4. Statement of the Issues: This is a very short introductory statement of the legal issues or

points of law involved in the case. It tells the Justices precisely what legal issues the attorney

team wants the Court to decide. These statements should be phrased to help one argue

a particular conclusion rather than simply against the other side.

NOTE

When noting issues, it may help to phrase them in terms of questions that can be answered

There is no substitute for taking the time to carefully frame the questions. The questions

must actually incorporate the key provisions of the law in terms capable of being given

precise answers. It may also help to

and so on.

5. Statement of the Facts: The Statement of the Facts is a retelling of the facts from your

s point of view.

Lawyers explain the situation in a way that helps their client. This is a very important part of

the brief that sets the stage for the argument, and should be presented both to help the

court understand the case and show your client in the best possible light. But, remember

not to assume facts not given, and do not distort, change, or add to the facts.

The Statement of Facts is for telling the court what the case is about. The Statement of Facts

should never be argumentative in tone. The argument portion of the brief is for contention

an emotional, sarcastic, plaintive, or visibly one-sided Statement of Facts.

In appellant briefs, you should be especially careful how you refer to the court or

administrative tribunal below. If you are the appellant or the petitioner, you are, of course,

asking the appellate court to reverse the lower court decision and the appellate court

knows that already. It knows you disagree with the outcome thus far. It will reverse in an

appropriate case. But its initial inclination, almost always, will be sympathetic to the fellow


judge who had to sit through the trial or to the tribunal that had to sift through the entire

record now being selectively quoted on appeal.

Criticism of the lower tribunal therefore should be stated carefully and objectively.

Remember:

The statements of fact section of a good student brief will include the following elements:

a) A one-sentence description of the nature of the case, to serve as an introduction.

b)A statement of the relevant law, with quotation marks or underlining to draw attention to

the key words or phrases that are in dispute.

c)A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct. d) A summary of actions taken by the lower courts, for example: defendant convicted;

conviction upheld by appellate court

e) Argument: This is the core of the brief. Students may find the argument to be somewhat

like writing a persuasive essay with lots of research references. It presents support for the

issues presented earlier. Solid research is used to back every part of the argument.

Arguments must be well-organized and convincing; lawyers will win or lose their case based

on the quality and substance of what is said.

Each point the team wants the court to consider in deciding the case must be described, and

the reasons explained with appropriate references to research materials used, and text

citations inserted as frequently as needed. Make sure to follow the citation format

applicable in your jurisdiction.

Structurally, each part of the argument ought to be first directed at supporting the various

issues of one's own case, then also opposing the contentions anticipated to be brought up

by the opposing party.


Stylistically, the argument ought to be written in forceful, active and positive language.

NOTE

within the rules is very important. The rules are the first thing

you must consider before writing your brief. Familiarise yourself with the rules of the court

in your jurisdiction. Follow to the letter matters such as, length, formatting and binding of

the brief.

When a court does have rules governing the format of a brief, obey them to the letter.

Remember:

There are two primary determinants of the quality of the argument section of a brief:

(1) the quality of the arguments available and

(2) the analytical and writing skills of the lawyers involved.

Editing

Ideally, editing is something that should be done on paper, not on a computer. Print the

brief out and read it (preferably aloud), with a sharp red pencil.

Guidelines

1) First focus on the organization, the flow of the brief as a whole. Have you developed your

arguments first --

Check out the following

a) the paragraphs, themes, and thoughts must flow from one to next

b) your thoughts must be in sequence and your transition clear

c) your central point ought to emerge clearly and quickly


d) your logic must be explicit and sound

e) Whether you have considered and anticipated to the best of your ability the counter

arguments or alternatives to your arguments and framed your arguments in the light of

them

f) your tone must be appropriate

g) Check that your paragraphs are not too long. The general rule is one thought or theme to a single paragraph. h) Eliminate rhetoric, hyperbole, and overstatement. Avoid metaphors and hypotheticals. Be

careful that any quotations are correct.

i) Get rid of adjectives and adverbs. Get rid of legal jargon. Get rid of redundant words. Get

rid of any overstatement. Do not overwrite. Use the simplest word, not the fanciest word.

Get rid of tired clichs.

j) Remember you are trying to persuade, not show how smart you are. Make it simple

enough that a lay person would understand.

k) Set the brief aside for a while. Then edit again. That way the writing will seem fresher in

your mind and not as familiar. You will catch things you missed as you were reading the

brief over before.

Reply briefs

The reply brief must be (relatively) short, (relatively) punchy, and selective.

To be effective, the reply brief must identify from the start one or more overall themes in

the argument or arguments with the best chance of winning and explain to the court where

the

back to your opening brief as a reminder of the overall structure of your argument and to

answer nagging questions. It is therefore usually unnecessary to retrace all the steps of your


logic in the reply brief, and it is far more acceptable in a reply than in an opening brief to

concentrate on sharply focused (but polite) debate.

Addendum

Never forget the importance of organization. It is vital to organize, not only the writing, but

also the theory of the case.

Do not quote snippets from one precedent after another without fitting those precedents

into an overall pattern.

perspective. Judges are concerned about both the institutional and the real-world

consequences of the rules they adopt.

Heated rhetoric and overstatement are harmful. Perhaps the most common flaw in

appellate briefs is writing in emphatic, unequivocal, and conclusory terms. Such briefs,

overconfident, even cocky, in tone and uninformative in content, are likely to obscure what

the judges must really decide and what analytical steps are needed to reach a sound

decision especially if the weakness in the argument has been glossed over in an effort to

make the position seem stronger than it is.

Do not include false statements in your brief. It is stupid to lie to the court because it will

sooner or later destroy your career. Just about the only function that you, the lawyer, serve-

from the perspective of a busy judge with many controversies to resolve is to be a conduit

of useful and accurate information. Your function is to pull together the facts, apply them to

the law, and explain your analysis to the judge in a helpful way.

the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual

record, or distortions of precedent. Then ask, how does this case relate to other cases in the

same general area of law? What does it show about judicial policymaking? Does the result

violate your sense of justice or fairness? How might it have been better decided?


Do not expect your judges to know your subject. Some education is inevitably necessary,

and you need to start doing so at the start of your brief. Group your common themes

together.

Tell your reader at the beginning of the brief where you are going and how you will get

there. Provide a roadmap to the reader in advance, through an introduction or opening

paragraphs.

Use transition to let the reader know you are moving to a new point.

The brief should march

sentence at the start of each paragraph should provide both transition and mapping. (A

topic sentence is a sentence that sets out the meaning or main idea of the paragraph).

Headings and sub-

explanatory.

Know the order of your authority. If your point on appeal rests on a statute, quote the

statute first, and put a copy of the statute in your appendix or attached to your brief. That is

what governs. Case law merely provides construction of the language of the statute.

-cite cases or regurgitate what an

opinion says. Explain why the cases you rely on should control the case rather than the

cases your opponent (or the lower court) cites.

Use your best three cases. If you cannot prevail on your best three cases having other cases

Formal conclusions are not worth the trouble. Start at the beginning; go to the end, and

then stop.


LEGAL OPINIONS

This explains what judicial opinions are, how they are structured, and what law students and

lawyers should look for when reading them.

When two people disagree and that disagreement leads to a lawsuit, the lawsuit will

sometimes end with a ruling by a judge in favour of one side. The judge will explain the

ruling in a writ The opinion explains what the case

is about, discusses the relevant legal principles, and then applies the law to the facts to

reach a ruling in favour of one side and against the other.

The formula of a legal opinion

Heading

The first part of the case is the title of the case. The title usually tells you the last names of

the person who brought the lawsuit and the person who is being sued. These two sides are

in the case. For example: Doe vs. Green.

As the case moves up the ladder the names are inversed. Thus for example if Doe appealed

to the court of appeal the case would be titled as Green vs. Doe.

In criminal law, cases are brought by the Public Prosecutor on behalf of the people.

Therefore the Republic becomes a party to the case; hence a case is titled as R vs. (name of

party being prosecuted)

Types of Disputes

There are two basic kinds of legal disputes: civil and criminal. In a civil case, one person files

a lawsuit against another asking the court to order the other side to pay him money or to do

or stop doing something. and an order to do

something or to refrain fro

The person bringi and the person sued is called the


In criminal cases, there is no plaintiff and no lawsuit. The role of a plaintiff is occupied by a

government prosecutor. Instead of fili someone), the

Instead of asking for damages or an injunction, the

prosecutor asks the court to punish the individual through either jail time or a fine. The

government pros . The

person charged is called the defendant, just like the person sued in a civil case.

When a lawyer addresses a judge in court, she will always address the jud

In legal opinions, however, judges will

The Case Citation

Following the case name you will find some letters and numbers. These letters and numbers

are the legal citation for the case. A citation tells you the name of the court that decided the

case, the law book in which the opinion was published, and the year in which the court

decided the case.

It is important to try and cite the most authoritative law report. For many countries there is

an official series.

Remember:

Great lawyers do not evaluate an opinion in terms of their agreement with the result, or

according to how congenial with their personal philosophy it may be, or simply because they

want to apply a value judgment in the choice, interpretation, or application of the

controlling legal precept, for this too may be a personal valuation. Rather, they measure

opinions on:

a) how thoughtfully and disinterestedly the court weighed the conflicts involved in the case

and

b) how fair and durable its adjustment of the conflicts promises to be


validity of the reasoning. (Harry Jones, 1974)

The Facts of the Case

The first part of the body of the opinion presents the facts of the case. In most common law

jurisdictions there are no particular rules for what facts a judge must include in the fact

section of an opinion. Sometimes the fact sections are long, and sometimes they are short.

Sometimes they are clear and accurate, and other times they are vague or incomplete.

The Law of the Case

After the facts the opinion will then discuss the law. Many opinions present the law in two

stages. The first stage discusses the general principles of law that are relevant to cases such

as the one the court is deciding. This section might explore the history of a particular field of

law or may include a discussion of past cases (known as precedents) that are related to the

case the court is deciding. This part of the opinion gives the reader background to help

understand the context and significan

The second stage of the legal section applies the general legal principles to the particular

facts of the dispute. This part is in many ways the heart of the opinion: It gets to the bottom

line of why the court is ruling for one side and against the other.

Appellate Litigation

right or wrong. After a court or tribunal has ruled for one side, the losing side may seek

review of that decision by filing an appeal before a higher court. The higher court is known

as the appellate or appeals court, as it is the court that hears the appeal. Generally,

appellate cases are decided by panels of several judges.

During the proceedings before the higher court, the party that lost at the original court and

is therefore filing the The party that won in the

lower court and must defend the lower co


Majority, Concurring & Dissenting Opinions

In law, a majority opinion is a judicial opinion agreed to by more than half of the members

of a court. A majority opinion sets forth the decision of the court and an explanation of the

rationale behind the court's decision.

Not all cases have a majority opinion. At times, the justices voting for a majority decision

(e.g., to affirm or reverse the lower court's decision) may have drastically different reasons

for their votes, and cannot agree on the same set of reasons. Some judges may disagree and

will write a separate opinion offering a different approach. Those opinions are called

and they appear after the majority opinion.

(sometimes just called a ) explains a vote in favour of

the winning side but based on

) explains a vote in favour of the losing side.

NOTE

When you read -sounding words to

describe the court system. You need to learn all of these words eventually; you should read

What you need to learn from reading a case

Know the Facts

Facts are important because law is often highly fact-sensitive, which is a fancy way of saying

know the facts, you

Remember:

Most common form of law school exam question presents a long description of a very

particular set of fact and analyse the legal issues

presented by those facts.


issues they raise.

Doing well on an issue spotter requires developing a careful and nuanced understanding of

the importance of the facts. The best way to prepare for that is to read the fact sections of

your cases very carefully.

Know the Specific Legal Arguments Made by the Parties

Lawsuits are disputes, and judges only issue opinions when two parties to a dispute disagree

on a particular legal

very specific disagreement.

The lawyers, not the judges, take the lead role in framing the issues raised by a case. The

best lawyers are highly skilled at identifying and articulating their arguments to the court.

In an appeal, for example, the lawyer for the appellant will articulate specific ways in which

the lower court was wrong. The appellate court will then look at those arguments and either

agree or disagree.

Know the Decision

of a case is the action the court took. It is often announced at the very end of

the opinion. For e a lower court decision, upholding

the decision, ruling for the other side. Alternatively, an appeals court

might the lower court decision, wiping the lower-court decision off the books, and

send it back to the lower court for further proceedings.

Remember:

a case it means that the lower court had it right (in result, if

means that the higher court

though the lower court had it wrong.

Understand the Reasoning of the Majority Opinion


To understand the reasoning of an opinion, you should first identify the source of the law

the judge applied. Some opinions interpret the Constitution while others interpret

still other cases interpret which is a term that usually refers to

the body of prior case decisions.

The source of law is very important because common law follows a clear hierarchy. Constitutional rules trump statutory rules, and statutory rules trump common law rules.

After you have identified the source of law, you should next identify the method of

reasoning that the court used to justify its decision. When a case is governed by a statute,

narrow in such settings because the legislature has settled the law. Similarly, when past

courts have already answered similar questions before, a court may conclude that it is

required to reach a particular result because it is bound by the past precedents. This is an

applicati stare decisis an abbreviation of a Latin phrase

That which has been already

In other settings, courts may justify their decisions on public policy grounds. That is, they

may pick the rule that they think is the best rule, and they may explain in the opinion why

they think that rule is best. This is particularly likely in common law cases where judges are

not bound by a statute or constitutional rule. Other courts will rely on morality, fairness, or

notions of justice to justify their decisions. Many courts will mix and match, relying on

several or even all of these justifications. (Kerr, 2007)

Understand the Significance of the Majority Opinion

al dispute by announcing and applying a clear rule of

law that is new to that particular case. That rule is known as the of the

case. found in an opinion.

Dicta refer to legal statements in the opinion not needed to resolve the dispute of the

parties; the word is a pluralised ab obiter dictum which

When a court announces a clear a ratio decidendi, you should take some time to think about

(new

sets of facts that are different from those found in the cases you have read). This exercise

will help you to understand the significance of a legal rule and how it might apply to lots of


different situations. Courts occasionally say things that are silly, wrongheaded, or confused,

and you need to think independently about what judges say. Concurring and dissenting

opinions often do this work for you.

Remember:

A rule might look good in one setting, but another set of facts might reveal a major problem

or ambiguity.

which means a new case may be governed by an older

case when the facts of the new case are similar to those of the older one. Therefore, the

best way to evaluate which are the legally relevant facts for a particular rule is to consider

new sets of facts.

its reasoning very well, and that forces us to try to figure out what the opinion means. In

such cases when you of the case but b you c do

not blame yourself, some opinions are written in a narrow way so that there is no clear

decidendi, and others are just poorly reasoned or written. Rather than trying to fill in the

ambiguity with false certainty, try embracing the ambiguity instead.

Remember:

the law is unclear. Indeed, this skill of identifying when a problem is easy and when it is hard

(in the sense of being unsettled or unresolved by the courts) is one of the keys to doing very

well in law school and in practice.

Precedent and authority

Precedent is an earlier case that is relevant to a case to be decided. If there is nothing to

distinguish the circumstances of the current case from the already-decided one, the earlier

holding is considered binding on the court. Authority can be either mandatory or

persuasive. Mandatory authority is law that is binding on the court deciding the case. A case

is only a precedent as to a particular set of facts and the precise legal issue decided in light

of those facts. If the case is not a precedent, but contains an excellent analysis of the legal

issues and provides guidance for a court, it is a persuasive authority.


Before using any legal authority to analyse a problem, you must know how that authority

has been treated by later actions of a court, legislature, or agency. A case may have been

reversed or overruled; a statute or regulation may have been amended or repealed.

When you read a statute, you must also read the cases that have interpreted the statute

because the wording may be ambiguous. Concurrences and dissents are also very

important. You need to read them carefully. To understand why, you need to appreciate

that law is man-made.

Disagreement between the majority opinion and concurring or dissenting opinions often

frames the key issue raised by the case; to understand the case, you need to understand the

arguments offered in concurring and dissenting opinions.

Learning

learning how to evaluate which rules and explanations are strong and which are weak.

The case method

The Historical Reason

The legal system inherited from England is largely judge-focused. The judges have made the

law what it is through their written opinions. To understand that law, we need to study the

actual decisions that the judges have written. Further, we need to learn to look at law the

way that judges look at law.

In our system of government, judges can only announce the law when deciding real

legal rules. A court

has no power to decide an issue unless it is presented by an actual case or controversy

before the court. To look at the law the way that judges do, we need to study actual cases

and controversies, just like the judges.

In short, we study real cases and disputes because real cases and disputes historically have

been the primary source of law.


The Practical Reason

Lawyers represent clients, and clients will want to know how laws apply to them. To advise a

client, a lawyer needs to understand exactly how an abstract rule of law will apply to the

very specific situations a client might encounter.

This is more difficult than you might think, in part because a legal rule that sounds definite

and clear in the abstract may prove murky in application.

Great lawyers need a vivid imagination; they need to imagine how rules might apply, where

they might be unclear, and where they might lead to unexpected outcomes. The case

method and the frequent use of hypotheticals will help train your brain to think this way.

(Kerr, 2007)

Published Opinions

An opinion may be defined as a publicly stated, reasoned elaboration that justifies a

conclusion or decision. Its purpose is to set forth an explanation for a decision that

adjudicates a live case or controversy that has been presented before a court. To put it

another way, a quality opinion will predict how similar factual scenarios will be treated. This

ability to develop case law finds legitimacy only because the decision is accompanied by a

publicly recorded statement of reasoning available to all future readers.

It is important for a court to decide which cases merit published opinions and which do not.

In regard to publication of opinions,

distinguished three categories of cases.

The first category which forms the majority of cases is comprised of those cases which are

obvious, clear and easy.

In these cases:

The law and its application alike are plain (and the cases) could not, with semblance of

reason, be decided in any way but one. Such cases are predestined, so to speak, to


To publish an opinion in such cases would contribute nothing new to the body of law or to

the reader. These cases do not merit even a non-precedential opinion. Instead, a plain

judgment order or citation to the court opinion in the appendix is sufficient.

categories of cases form a considerable percentage in court rulings. In

such cases:

record must be dissected, the narratives of witnesses, more or less incoherent and

unintelligible, must be analysed, to determine whether a given situation comes within one

district or another upon the chart of rights and wrongs. . . . Often these cases . . . provoke

difference of opinion among judges. Jurisprudence remains untouched, however, regardless

of the outcom

In this second category a non-precedential opinion is legitimate. The rule of law is settled,

and the only question is whether the facts come within the rule. Such fact-oriented opinions

do not add to jurisprudence and thus do not require publication.

(a) percentage, not large indeed, and yet not so small as to

A decision one way or the other, will count for the future, will advance or retard, sometimes

much, sometimes little, the development of the law. (These are the cases where) The

creative element in the judicial process fi

From such cases, each modestly articulating a narrow rule, emerge the principles that form

-length, signed published

opinions. Great lawyers know how to distinguish between these three categories.

Opinion Writing Guidelines

The type of opinion to be prepared depends upon the purpose that the appellate opinion

serves. This may include:

1) to ensure that substantial justice was done.

2) to provide a judicial mechanism for the progressive development of the law in the

common law tradition. It is concerned with articulating and applying constitutional

principles, authoritative interpretation of statutes, and the formulation of policy.


3) to ensure uniform administration of justice throughout the jurisdiction.

The following steps are useful when writing an opinion.

Know your audience

The writer of a published opinion must always be aware of the audience for whom he or she

writes. Knowing who you audience is will play a great role on how you approach the

purpose of an opinion.

Examples of audiences are:

1) Posterity

2) The bar.

3) Future judges

4) legislature- to show that new legislation is needed to clean up the common law mess in

the general area

5) law students

6) the intelligent citizen

7) self- to satisfy yourself that the decision is right

Remember: Better opinion writers understand that they write for distinct primary and secondary

categories of readers and target the tenor of their opinions accordingly.

Neil McCormick, Professor Emeritus of Public Law at the University of Edinburgh, Scotland,

discusses the duty of an opinion

and Coherence.

To consider consequence, the opinion writer must keep in mind that the case holding not

only applies to the present case, but will apply also to future circumstances that incorporate

identical or similar facts.


The opinion must also be consistent with valid and binding legal precepts of the legal

system.

The opinion must be coherent with an intelligible value or policy and not measured by a

random set of norms.

The Anatomy of an Opinion

IRAC & CRARC

IRAC IRAC stands for Issue, Rule, Application, and Conclusion.

The issue section tells the reader what the party in the case is fighting over, in other words,

what brings the parties into court. In writing about an issue, state the question or problem

that you are trying to answer. This can be in the form of a question or a statement. In your

writing eliminate facts

Issue spotting is easiest when you know the laws and court holdings of your jurisdiction, so

be sure to research and study thoroughly, but if you run across a question that is not

addressed by the rules of your jurisdiction, don't fret. Use the opportunity to bring up rules

from other jurisdictions that might persuade the court to make new precedence on that

issue.

As for the rule bit, State the rule or legal principle. This may take the form of stating the

elements required for a prima facie case. Rules can be found in laws, regulations, and

precedents (court holdings from similar cases), but while all rules are mentionable, all do

not carry the same strength.

The application should be the simplest part of your writing. If you know the facts, can see

the issues, and know the rules pertaining to those issues, the application will write itself.

This is where you state your evidence and explain how you will arrive at your conclusion.

You may cite other cases, discuss policy implications, and discuss cases that run counter to


your conclusion. Make sure that you weigh both sides and make counterarguments where

appropriate. Use case law, analogising and distinguishing. Discuss any policy implications.

As for the conclusion, this is a statement that tells your reader what the result of your

arguments is, or what it should be. The conclusion should answer the question presented.

Smart and great lawyers use IRAC variations to formulate their written arguments.

CRARC

Of the many organisational models deviated from IRAC, one that fully captures all elements

of persuasive legal writing is CRARC.

CRARC stands for Conclusion, Rule, Application, Rebuttal and Refutation, and Conclusion. A

great lawyer uses CRARC as a roadmap to structure an argument section when drafting a

persuasive trial or appellate brief.

The Meaning of CRARC

The Conclusion section is a succinct summary of your main argument on an issue and why

you should win.

is a conclusion about how the court should deal with your legal issue.

The initial conclusion is your initial and most valuable opportunity to persuade the reader

why you should win. This is what distinguishes CRARC from IRAC or IRARC. With the latter

two, unlike with CRARC, you begin with a neutral restatement of an issue.

-point, or sub-

sub-point heading. Restatements waste an opportunity to persuade. The Conclusion should

succi


In an appellate brief, the first Conclusion answers the question on appeal in your favour. In a

trial memorandum, the first Conclusion will state why the court should rule in your favour

on the issue in your case.

The Rule section should consist of a statement or series of statements of the constitutional,

statutory, or common-law authority you deem binding or persuasive in determining the

legal issue. Raise all relevant rules for the first time in the Rule section, not in the Rebuttal

and Refutation section.

Whenever possible, limit yourself to three or four rules. Paraphrase the law or quote

directly from the law.

State your rules in order from those most favourable to your case to those least favourable

to your case under the law. Then cite your strongest authorities first.

Cite relevant statutes or case law after each rule, but do not string-cite to show off your

research.

The Rule section can be more than one paragraph; it should be as long as it needs to be to

encompass the rule.

Be brief and concise.

Raise binding authority before you raise persuasive authority. Consider using parenthetical

explanations to explain case law.

Argue your facts here.

Apply to the facts of the case the rule you identified as relevant. If your rule has a set of

elements or factors, then apply them to your facts accordingly.


how the rationale behind the rule applies in your case.

re law and

fact meld. Attach legal significance to the facts of your case. Merely stating, without

to compare the cases with your facts and reach the conclusions you urge.

Your Application contains your factual and legal arguments and should support your

conclusion.

Case comparisons are ineffective, except when one case contains facts similar to your case.

In a thesis paragraph, provide only a brief application.

detail in later points and sub-points of the brief.

.

on to the next rebuttal, with your strongest counter-arguments.

Bolster your credibility by showing the court that you recognize counter-arguments (those

that criticise or distinguish the law or facts of a case you cited in the Rule section). Explain

why your position is correct despite potential or apparent weaknesses.

Your first sentence in this section should begin with a statement showing how

e is misplaced for a specific reason, or


After the first sentence in this section, state the law that shows the truth of the sentence.

Then apply the law to the case. Then conclude. To rebut a second or third argument, follow

the same framework.

facts or law favouring your position.

clusion.

the point heading. But

instead of arguing your issues, use the final conclusion to state the relief you seek. This is

the narrow conclusion.

Tie the legal issue and your arguments to the relief you seek. The conclusion summarises

the applicable sub-point or sub-sub point.

Be specific about how the court should decide your case. In appellate briefs, also state

whether the trial court or the intermediate appellate court made a correct or an incorrect

decision whether the appellate court should reverse or affirm the decision.

This shows your reader that every line in between the first and last conclusion of a CRARC

proves your first conclusion.

Remember:

CRARC guides you to begin an argument with a persuasive conclusion statement instead of a

neutral issue statement. It also directs you to craft a rebuttal that acknowledges the

-

contentions. Anticipating a rebuttal will give you credibility without undercutting an

argument.

Advantages of CRARC


CRARC holds many advantages over both IRAC and IRARC for persuasive briefs. Both IRAC

and IRARC begin with a neutral restatement of the issue in the case. When you restate an

issue up-front, you miss an opportunity to persuade the reader.

CRARC guides you to begin your argument with a conclusion, which allows you immediately

to tell the reader why you should win. It also helps you analyse important facts and prevents

you from missing crucial facts. A properly CRARCed argument section addresses the

strongest arguments first, followed by weaker arguments and public-policy arguments. This

is the best method for persuasive writing.

Other variants (IRARC)

Great Lawyers also use other variants when drafting, for example they may use IRARC when

drafting an objective memorandum.

IRARC stands for Issue, Rule, Application, Rebuttal and Refutation, Conclusion.

The difference between CRARC and IRARC is that the former begins with a persuasive

conclusion statement and the latter begins with a neutral issue statement.

IRARC is better than IRAC because, like CRARC, it compels you to provide a rebuttal and

refutation.

Just like the Rebuttal and Refutation section in CRARC, the rebuttal section in IRARC will

help you gain credibility with the reader, and it will help you focus your arguments.

Structuring the Brief

A valuable way to organise a legal argument is to give the reader a roadmap, which CRARC

provides. A roadmap serves as a mini-

discuss.


Place your roadmap after your thesis and just before each individual CRARC. A roadmap

constructed under the CRARC model instantly reveals the overall legal argument, the rule,

how the rule applies to a particular set of facts, and the counter-argument, all before the

reader begins to read the details of your argument.

Place your Rebuttal and Refutation in the right place in your brief so as not to undercut your

argument. The places with the most emphasis in an argument are the beginning and the

end, while the place with the least emphasis is the middle. With CRARC, an argument begins

and ends with a persuasive conclusion.

The best place for your Rebuttal and Refutation, then, is in the middle of the argument. This

section addresses the flaws in your argument and should be the least memorable. If you

argument, between your application and final conclusion.

good reasons to support your own position.

Use the CRARC model for each issue, and have the courage to limit the number of CRARCs

to those issues that have a reasonable likelihood of success. Issues and, thus, separate

CRARCs consist of individual grounds on which the court might grant the relief you seek if

it agrees with you on that issue but disagrees with you on everything else.

Your strongest CRARC, or at least the one that will give you the greatest relief, should be

listed first, although threshold arguments like those involving the statute of limitations or

will help you avoid addressing tangential issues. (Lebovits, ,2010)

Some Criticisms of legal Opinions

The following are some criticisms against legal opinions. Great lawyers try to avoid them.

1) Drafting opinions which are too long and burdened with too many citations.

Documents

The Art of Great Lawyers